United States: Forget About The Clean Water Rule: What You Need To Know Today About Federal Jurisdiction Over Wetlands And Streams

Last Updated: January 22 2016
Article by Gregory S. Braker, Margaret N. Strand and John B. Mavretich

The 2015 regulation revising federal jurisdiction over wetlands and streams, promulgated by the Environmental Protection Agency (the EPA) and U.S. Army Corps of Engineers (the Corps), is currently in litigation and has been enjoined. This rule, defining "waters of the United States" or "WOTUS" for purposes of the Clean Water Act (CWA), is extremely controversial. Multiple lawsuits are pending in district and appellate courts. Congress has held hearings and introduced legislation to set aside the regulation. The President promises to veto any such legislation. Hardly a week passes without some new event involving the "WOTUS" regulation.

So what governs now, and what will govern for the foreseeable future? We offer this brief guidance free of the noise of pending judicial and legislative action.

  • The new regulation would have expanded federal jurisdiction in a number of ways. It was scheduled to take effect August 28, 2015, but IS NOT IN EFFECT anywhere in the nation.
  • Litigation schedules are hard to predict, but it appears that, absent a settlement, federal litigation over the new regulation (and the injunction against the rule) will continue throughout 2016.
  • Jurisdiction now is determined using Federal Guidance and the results of several federal cases that predate the new regulation.

That is it, in a nutshell. However, the federal jurisdiction pre-regulation had very fuzzy edges. The remainder of this Client Alert highlights the issues of federal jurisdiction that are important to consider as the battles over the regulation continue. You should continue to contact your legal and technical advisors for site-specific assistance, as the scope of federal jurisdiction is murky and in flux.

As Much Background as You Need

More than 40 years after its passage, the CWA still remains a mystery in some crucial respects. Specifically, the most important question remains unanswered: What bodies of water are covered by the law? The CWA covers discharges into "navigable waters," which is defined in the statute as "waters of the United States, including the territorial seas." See 33 U.S.C. §§ 1311(a) & 1362(7), (12)(A). This jurisdictional definition has been the subject of multiple Supreme Court and federal appeals court cases, which have not provided any clear answer.

Regulations defining "waters of the United States" to include "not only actually navigable waters but also ... all 'freshwater wetlands' that [are] adjacent to other covered waters" have been on the books since 1975. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24 (1985) (Riverside Bayview Homes). The law is well settled that some non-navigable waters, such as wetlands and headwaters of streams, are covered by the law.

What has not been clearly established is whether there is a line in the water (not the sand) where federal CWA jurisdiction ends. At that point, presumably, states could exercise such jurisdiction as needed to protect "WOTUS" from pollution that might originate on land or on non-federal waters. This came to a head in 2006, when the Supreme Court addressed the Corps' assertion of CWA jurisdiction over wetlands "which lie near ditches or man-made drains that eventually empty into traditional navigable waters." Rapanos v. United States, 547 U.S. 715, 729 (2006) (Rapanos). In the particular situation under consideration, a majority of the Court found that there was no such jurisdiction, but without a majority agreeing on the reasons. The plurality opinion, authored by Justice Scalia, asserted that federal jurisdiction existed only where water was permanently present. Justice Kennedy authored a concurrence in which he established a separate governing standard. While there is not unanimous agreement, most circuits agree either that Justice Kennedy's concurrence contains the sole governing standard for whether wetlands may be considered a "water of the United States" under the CWA or that the Kennedy standard is at least as controlling as the plurality's. See United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (7th Cir. 2006); United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009).

Justice Kennedy's concurrence established the "significant nexus" test for jurisdiction over "wetlands based on adjacency to nonnavigable tributaries." In regard to jurisdiction over seasonally dry wetlands, Justice Kennedy stated in Rapanos:

[W]etlands possess the requisite nexus, and thus come within the statutory phrase "navigable waters," if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as "navigable." Rapanos, 547 U.S. at 780.

Since 2006, the Corps and EPA have applied this "significant nexus" test under a series of Federal Guidance documents. A few federal courts have considered application of the "significant nexus" test, offering some judicial guidance on its meaning. In the absence of the new regulation, the agencies will follow their Guidance documents and the lessons from court decisions.

State of the Law at Present

The few courts that have attempted to apply the "significant nexus" standard to wetlands adjacent to non-navigable tributaries have had to address similar issues.

"Aggregation" means that jurisdiction over wetlands is determined "in combination with similarly situated lands" – i.e., it's not just your property that is evaluated.

The significant nexus standard requires the government to show that a wetlands' functions "significantly affect the chemical, physical, and biological integrity of other covered waters." This analysis, however, is not necessarily confined solely to the functions of the portion of wetlands at issue in a case. Instead, adopting the ecological truism that alteration of any given portion may affect the entire body, the court may examine the functions performed by an entire wetlands formation to determine if jurisdiction is proper.

In Precon Development Corp., the developer sought to fill a 4.8-acre section of wetlands adjacent to a man-made ditch. Precon Development Corp., Inc. v. U.S. Army Corps of Engineers, 633 F.3d 278, 282 (4th Cir. 2011) (Precon I). The man-made ditch joined with a series of related ditches downstream that eventually emptied into a jurisdictional river approximately seven miles away. In analyzing whether the site at issue satisfied the significant nexus test, the Corps did not just analyze the functions of the 4.8-acre section alone. Instead, it considered that section in conjunction with the entire 448-acre surrounding wetlands, because "they were historically part of the same naturally defined wetland drainage feature," all of which "were part of a physical, chemical and biological connection of wetlands and streams that existed and had always existed in the area." Id. at 291. (Internal quotations omitted.)

The Fourth Circuit approved of this "aggregation" method, even though the 4.8-acre parcel of wetlands was partially separated from the other wetlands by a man-made berm. The court deferred to the Corps' finding that the berm "did not disconnect these wetlands from surrounding ones, because it neither inhibited wildlife movement nor wetland function." Id. The court similarly deferred to the Corps' emphasis on the "historical" and "natural" layout of the wetlands, finding that man-made improvements were unlikely to separate any single portion from the rest of the larger wetlands formation. Id. at 292.

Nexus can be shown in many ways.

Under the agency's guidance and the court cases, the nexus between wetlands and navigable waters can be shown in a number of ways. The primary method is a hydrological connection, water flowing at least some time during the year between the wetlands and the downstream water. Great distances are not an obstacle to a hydrological nexus.

However, a hydrological connection is not the only type of nexus recognized by the Corps or the courts. Most recently, the Fourth Circuit considered a wetlands' carbon sequestration functions to be "beneficial...for food-chain support and wildlife" downstream and therefore supportive evidence of a nexus. Precon Development Corp., Inc. v. United States Army Corps of Engineers, 603 Fed. Appx. 149, 154 (4th Cir. 2015) (Precon II). In the same case, the Fourth Circuit also approved of the Corps' consideration of species present within the "river system" which used the wetlands and tributary system as a travel corridor and/or feeding, breeding, or nursery area. These species included non-aquatic animals such as "an endangered species of rattlesnake" which inhabited the wetlands and an endangered species of bat that was "nearby" the wetlands. Id.

The "significance" of the nexus is where things get murky.

Ever since this standard was articulated, determining whether a nexus is "significant" has been the most difficult aspect of jurisdictional determinations. Justice Kennedy recognized in Rapanos that some connections were not significant: "When...wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term 'navigable waters.'" Rapanos, 547 U.S. at 780. However, does this mean, as the government maintains, that any nexus that is not "speculative or insubstantial" is significant? There has been some limited guidance provided in caselaw.

  • "Significance" does not require a quantitative showing.

Since the Raponos concurrence in 2006, everyone has been trying to determine what constitutes a "significant" nexus, in contrast to an insignificant nexus. Justice Kennedy's words offer little clarity. Some have argued that the Corps cannot show a significant nexus without providing specific quantitative measurements related to the wetlands' impact on a navigable water. However, courts have soundly rejected arguments that significance must have some quantitative measure.

The Sixth Circuit has stated that the government's expert witnesses may properly establish a significant nexus by using either quantitative or qualitative evidence. No "laboratory analysis" is necessary. United States v. Cundiff, 555 F.3d 200, 211 (6th Cir. 2009). The Fourth Circuit agrees that no "particular quantitative measurements" are necessary to examine "the comparative relationship between the wetlands at issue, their adjacent tributary, and the traditional navigable waters." Precon I, 633 F.3d at 294. These courts simply require physical evidence – qualitative or quantitative – to determine that a nexus exists and is significant to the covered water. Even those courts that have considered quantitative evidence have also considered ecological, qualitative evidence alongside the empirical data. See Northern California River Watch v. City of Healdsburg  496 F.3d 993, 1000-01 (9th Cir. 2007); U.S. v. Donovan, 661 F.3d 174, 186-87 (3d. Cir. 2011).

Significance requires an actual – not potential or hypothetical – impact on the navigable water.

The courts have rejected assertions of jurisdiction based on "it could impact" arguments. The government must show that the wetlands at issue "perform significant ecological functions in relation to" the navigable water. Cundiff, 555 F.3d at 211 (emphasis added). It is not enough to analyze the wetlands' functions in isolation. Instead, the evidence must show that the wetlands' functions significantly impact the condition of the navigable water. See, e.g., United States v. Lucas 516 F.3d 316, 327 (5th Cir. 2008) (finding a significant nexus because the evidence showed that the wetlands at issue "control flooding in the area and prevent pollution in downstream navigable waters"); Simsbury-Avon Pres. Soc'y, LLC v. Metacon Gun Club, Inc. 472 F. Supp. 2d 219, 229-30 (finding no significant nexus, despite the proximity of the wetlands to the navigable water, because plaintiff provided no evidence that the pollutants near the wetlands ever actually migrated to or had an actual effect on the nearby navigable water).

The Sixth Circuit found a significant nexus where a government expert showed that the defendant's alterations to the wetlands "affected the frequency and extent of flooding, and increased the flood peaks" in a jurisdictional navigable water. Cundiff, 555 F.3d at 211. A separate expert witness further supported the significant nexus by explaining how the defendant's alterations to the wetlands caused "direct and significant impacts to navigation (via sediment accumulation in the [navigable water]) and to aquatic food webs." Id.

The Fourth Circuit initially rejected the Corps' claim for jurisdiction where the agency analyzed the wetlands' functions without analyzing those functions specifically in relation to the navigable water. Precon I, 633 F.3d at 294-96. Specifically, the court stated: "although we know that the wetlands and their adjacent tributaries trap sediment and nitrogen and perform flood control functions, we do not even know if the [related navigable water] suffers from high levels of nitrogen or sedimentation, or if it is ever prone to flooding." Id. at 295. In 2015, after the Corps supplemented its record, the Fourth Circuit approved the agency's significant nexus finding based on the agency's analysis of the relevant wetlands' functions in relation to the navigable water. See Precon II.

Watch out for deference granted to the government, which lowers the bar to prove jurisdiction.

There is a set of legal issues involving the burden of proof in court that weave their way into the cases dealing with CWA significant nexus jurisdiction. In general, if the government brings a civil enforcement action, it has the burden of proof "by preponderance of the evidence." In criminal enforcement, that burden is "beyond a reasonable doubt." In contrast, if a citizen challenges a final agency action, such as a determination of jurisdiction, the government's action is granted a degree of deference by the reviewing court, on the principle that agencies have specialized expertise in the programs they administer. As early as 1985, in Riverside Bayview Homes, the Supreme Court deferred to the Corps' finding of jurisdiction, based on granting deference to the agency's technical expertise and ecological judgment that wetlands adjacent to navigable-in-fact waters necessarily are jurisdictional. This was restated (or short-handed) in post-Rapanos decisions as a presumption that wetlands adjacent to navigable-in-fact waters are jurisdictional. Precon I, 633 F.3d at 289; see also Cundiff, 555 F.3d at 207; Northern California River Watch, 496 F.3d at 1000.

Read more carefully, it appears that these appellate decisions addressing the Kennedy "significant nexus" standard were granting the Corps' or EPA's evidence in support of jurisdiction a measure of deference. There does not seem to be a presumption similar to the presumption of innocence rather than guilt in the criminal system. Rather, it appears that reviewing courts to date have lowered the bar for the government to prove a significant nexus by granting deference to the government's position that certain kinds of evidence demonstrate the nexus and its significance. Wetlands adjacent to navigable-in-fact waters face the least scrutiny because of the "reasonable inference of ecologic interconnection," while more evidence is required to prove jurisdiction over more remote wetlands and streams. Rapanos, 547 U.S. at 780. Moreover, at least one court has indicated that there is a lower bar for permitting cases, where no damages can yet be measured, as opposed to enforcement cases where the downstream impacts can be recorded. Precon II, 603 Fed. Appx. at 152.

It remains to be seen whether the different burdens of proof applicable in different kinds of cases – enforcement or challenge to agency action – will play a role in the evidence needed to prove CWA jurisdiction.


Federal courts have begun to interpret the "significant nexus" standard as applied, even in the absence of the new regulation. In all likelihood, these cases will govern CWA jurisdictional determinations for the foreseeable future while the Rule is caught up in the courts and/or after litigation ends (if the Rule is struck down).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.